Can Undocumented Workers Seek Lost Earnings?

The United States Supreme Court has never commented directly on the issue of whether undocumented workers can claim personal injury damages in the form of lost future earnings. However, to some courts and pundits, the U.S. Supreme Court came close when in 2002 it decided whether undocumented workers could claim back-pay as damages under claims for violations of the National Labor Relations Act (“NLRA”) a case entitled Hoffman Plastic Compounds, Inc. v. National Labor Relations Board.[i] The Court held that the Immigration Reform and Control Act (“IRCA”) criminally prohibits undocumented workers from working in the United States and prohibits employers from employing those individuals.[ii] The Court further held that IRCA’s provisions make it impossible for an undocumented worker to obtain employment in the United States without one or more parties violating congressional immigration policies.[iii] The Court concluded that it would be improper to “award back-pay to an [undocumented worker] for years of work not performed, for wages that could not lawfully have been earned, and for a job obtained in the first instance by criminal fraud.”[iv]

The issue of whether undocumented workers can claim lost future earnings as personal injury damages was heard by the Colorado Court of Appeals in 2009 in a case entitled Silva v. Wilcox.[v]

Silva originated in Denver District Court. The defendant was traveling on a snow-packed highway when traffic slowed.[vi] The defendant spun out after she applied the brakes and collided with a bus which then collided with the plaintiff, although there were some factual disagreements as to the chain of events.[vii] The plaintiff, a Colorado resident, was not a U.S. citizen and was driving with only a Mexican driver’s license.[viii] Prior to trial, the District Court granted a motion in limine precluding any mention of plaintiff’s immigration status.[ix] The jury awarded damages to the plaintiff that, according to a jury instruction, included “loss of earnings or damage to [plaintiff’s] ability to earn money in the future…”[x] The defendant appealed the district court’s granting of the motion in limine and relied principally upon Hoffman to argue the plaintiff’s immigration status was relevant and admissible in regards to plaintiff’s claim for loss of future earnings.[xi]

The Court of Appeals, on a case of first impression, reviewed and summarized how other courts around the country have interpreted the Hoffman case with regards to a claim of lost earnings.[xii] The Court of Appeals concluded that “where a claimant is seeking to recover lost future wages, the inquiry into his right as an immigrant to earn such wages is relevant; however, there must be a showing that the immigrant has violated the IRCA and that he is unlikely to remain in the country during the period for which wages are sought before he can be precluded from recovering such wages.”[xiii] The Court of Appeals stated further that “[o]ur holding falls short of adopting an absolute bar to recovery of lost future wages by an unauthorized immigrant, but supports the notion that a claimant’s breach of the law ought to be a consideration in the jury’s decision whether to award such damages.”[xiv]

The Court of Appeals simultaneously broadened and narrowed its conclusion a few paragraphs later when it held: “[T]o the extent that a defendant is able to establish that a plaintiff immigrant is not authorized to be in the United States and has secured employment by violating the law or is in violation of the law in some other particular fashion related to employment, so that the plaintiff is unlikely to remain in this country throughout the period of claimed lost future income, we hold that the jury should be provided that information in determining whether to award damages for lost future wages.” [xv]

The court pointed out that an evidentiary hearing under C.R.E. 403 should have been conducted by the trial court to determine the admissibility of the plaintiff’s immigration status.[xvi] In line therewith, the case ultimately was remanded to the trial court for an evidentiary hearing on the relevance and admissibility of the plaintiff’s immigration status, but the parties settled prior to any further argument or order of court on the issue.[xvii]

Ultimately, the language of Silva and the lack of any remanded argument or rulings from the trial court hinder the application of Silva’s holding. At its core, the Silva court’s ruling is merely an evidentiary issue under C.R.E. 403: the issue of a plaintiff’s immigration status may be relevant. The Court of Appeals did not determine the admissibility of the evidence but theorized that “if Silva is not authorized to be in the United States and Wilcox could show that he violated the immigration laws or some similar regulation in securing employment, that information would be admissible, and the jury ought to be permitted to consider it in deliberating about a damage award.”[xviii] From this dicta it can be inferred that the Silva court would not bar an undocumented worker’s claim for damages, but the underlying facts surrounding the plaintiff’s illegal status may be relevant and admissible for the jury to consider when awarding damages. However, the Court of Appeals did not provide any further instructions or indications on how logistically and analytically this concept would be employed. What type of evidence is needed to outweigh any prejudicial effects under C.R.E. 403? What type of instruction would go to the jury? How can the jury use the evidence of the plaintiff’s illegal status in determining whether to award future lost earnings? Like other jurisdictions nationally, these questions and many more remain unanswered in Colorado.